INTRODUCTION .gov

?Decision 21-02-034February 11, 2021BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIAIn the Matter of the Application of San Diego Gas and Electric Company (U902E) for a Permit to Construct the TL 6975 San Marcos to Escondido Project.Application 17-11-010ORDER DENYING REHEARING OF DECISION 20-09-034 INTRODUCTIONIn Decision (D.) 20-09-034 (Decision) of Application (A.)17-11-010, the Commission granted the request of San Diego Gas & Electric Company (SDG&E) for a permit to construct (PTC) the Tie Line (TL) 6975 San Marcos to Escondido project (Project).The approved Project involves construction and reconductoring/reenergization of approximately 12 miles of 69 kilovolt (kV) overhead electric power lines from the existing San Marcos Substation to the existing Escondido Substation. The Project improves reliability by mitigating North American Electric Reliability Corporation (NERC) Reliability Criteria violations, eliminating congestion and providing an additional feed. There are three segments:Segment 1 Rebuild: Rebuild of approximately 1.8 miles of an existing 69 kV circuit power line near the existing San Marcos Substation (TL 680C), add TL 6975 to create a double 69kV circuit, replace wood poles with steel poles, as well as minor work at the San Marcos Substation to accommodate this rebuilt circuit. Segment 2 New Build: Addition of approximately 2.8 miles of a new single-circuit 69 kV overhead power line from the end of Segment 1 to the existing Meadowlark Junction. Segment 3 Reconductoring/Re-Energizing: Reconductoring approximately 7.4 miles of a de-energized power line segment to the existing Escondido Substation. Segment 3 includes minor work at the existing Escondido Substation to accommodate this new circuit.(Proponent’s Environmental Assessment (PEA), p. 3-2.)On November 15, 2017, SDG&E filed this Application, including the PEA. SDG&E’s January 4, 2018 Compliance Filing provided a declaration of advertising, posting, and mailing to affected governmental bodies and property owners, giving notice of the application, as required by General Order (GO) 131-D, Section XI.A. There were no filed protests or responses to the Application. On April 1, 2019, a Notice of Intent (NOI) to adopt a Mitigated Negative Declaration (MND) was circulated, as was the Draft MND, including an Initial Study (IS) (Draft IS/MND), for an initial 45-day public review and comment period, in compliance with the California Environmental Quality Act (CEQA) and Commission Rule 2.4. The Draft IS/MND was made available online and at the San Marcos Public Library. The comment period was extended to 60 days pursuant to a request by the City of San Marcos. The Commission held public meetings and received numerous comments on the Project. (See D.20-09-034, p. 4.) The Commission responded to the comments on the Draft IS/MND. (D.20-09-034, p. 5.) Energy Division issued the Final IS/MND on January 10, 2020, which included written responses to comments received on the Draft IS/MND, did not identify new significant environmental impacts, and confirmed that it provided “corrections and clarity to certain facts set forth in the Draft IS/MND[.]” (Final IS/MND, p. 1-1.)After reviewing opening and reply briefs and considering opening and reply comments on the Proposed Decision, the Commission issued D.20-09-034 on October 5, 2020. The Decision stated that “no significant environmental impacts from the proposed project remain after incorporation of SDG&E’s applicant proposed measures and the CPUC’s imposed mitigation measures.” (D.20-09-034, p. 10.) The Decision also confirmed that recirculation was not necessary because “[s]ince circulation of the Draft IS/MND, there have been no ‘substantial revisions’ to the MND, as defined in CEQA Guidelines Section 15073.5, and there is no evidence the project may have a significant impact on the environment that cannot be mitigated or avoided.” (D.20-09-034, p. 8.) The Final IS/MND was adopted in the Decision, which concludes “on the basis of the whole record before it (including the Initial Study and any comments received) that there is no substantial evidence that the project will have a significant effect on the environment and that the MND reflects the lead agency’s independent judgment and analysis.” (D.20-09-034, p. 16, COL #2, 3.) On November 2, 2020, the City of San Marcos (San Marcos) filed an application for rehearing of D.20-09-034 (San Marcos App. Rhrg.). San Marcos alleges that D.20-09-034: (1) improperly disregards the comments in opposition to the project, (2) violates CEQA by granting the PTC and adopting the Final IS/MND along with its mitigation measures for the Project in reliance on legally and factually unsupportable Findings of Fact and Conclusions of Law, and (3) entirely disregards the inadequacy of the right of way analysis. San Marcos also filed a motion for a stay of the proceeding pending the Commission’s review of its application for rehearing.On November 4, 2020, Dr. Robert H. Pack, Rancho Dorado Owners’ Association, and San Elijo Hills Community Association (Pack) filed a joint application for rehearing of D.20-09-034 (Pack App. Rhrg.). Pack alleges that D.20-09-034: (1) lacks any analysis, discussion, findings or conclusions regarding safety and thereby failed to proceed in a manner required by law and engaged in an abuse of discretion, (2) does not consider or mitigate the proposed project’s increased fire risk, (3) should have analyzed alternatives that decrease fire risk, and (4) commits legal error by approving an MND, where an Environmental Impact Report (EIR) was required. Pack also requests a stay. On November 17, 2020 SDG&E filed a response to both rehearing applications. DISCUSSIONA.The Commission Properly Considered the Comments San Marcos alleges that “[t]he people of the City suffered an unlawful deprivation of their right to due process of law when the City’s Comments on a Proposed Decision were ignored.” (San Marcos App. Rhrg., p. 8.) Without citation, San Marcos also alleges that this was “an abrupt and unexplained departure from Commission precedent” that was “arbitrary and capricious under applicable legal standards.” (San Marcos App. Rhrg.,p. 8.)Due process requires that parties be given notice and opportunity to be heard. (See, e.g., D.04-03-009, p. 36.) Further, “[u]nder the arbitrary and capricious standard, an agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. A court will not deem a decision to be arbitrary or capricious unless the agency entirely failed to consider a material and important issue, offered an explanation that unreasonably runs counter to the evidence, or is entirely implausible.” (D.18-11-017, p. 12, internal quotations and citations omitted.)The Decision expressly confirms that the comments on the Proposed Decision were considered. (D.20-09-034, p. 13.) Also, parties had been given multiple opportunities to make contentions throughout the process “including the comments submitted on Draft IS/MND and the written responses to those comments, as well as the parties’ opening and reply briefs[.]” (D.20-09-034, p. 9.) There has been no showing in the applications for rehearing that the Decision’s analysis of CEQA, as well as its determination that parties’ comments did not warrant modifications to the Proposed Decision, constituted legal error. The Commission is not required to specifically respond to each comment made by the parties. (D.20-05-027, p. 6 (“[T]he fact that a Decision does not refer to a party’s argument does not demonstrate it was ignored, or that, absent such a reference, the Decision lacks support from the record.”).) The Commission appropriately considered the relevant contentions, complied with CEQA and disposed of this matter in accordance with the parties’ due process rights. B.The Commission Complied With CEQASan Marcos argues that “there is substantial evidence of a fair argument that the Project might have significant environmental impacts that were not adequately mitigated by the MND, and that the Commission should exercise its discretion to rehear the PTC application, and require the preparation of an EIR before a PTC for the Project can be granted.” (San Marcos App. Rhrg., p. 12.) Likewise, Pack contends that “[t]he Commission committed legal error in the Decision by approving an MND, where an EIR was required.” (Pack App. Rhrg., p. 15.) “At the outset, it should be noted that the purpose of an application for rehearing is to identify legal error, and not to reweigh the evidence. … Challenges to the weight given a particular piece of evidence, or the validity of specific evidence does not constitute a claim of legal error, as long as our conclusions are supported by substantial evidence in light of the whole record.” (D.14-10-027, p. 2.) The parties here have not, and cannot, demonstrate that any of our conclusions are not supported by substantial evidence in light of the whole record. This case adopted an MND, rather than an EIR, which is appropriate as “there is no substantial evidence, in light of the whole record before the lead agency, that the project, as revised, may have a significant effect on the environment.” (Pub. Resources Code, § 21064.5.) The Decision explains that “[f]or CEQA purposes ‘substantial evidence’ means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency.” (D.20-09-034, p. 9, citing CEQA Guidelines, § 15384(a), Pub. Resources Code, § 21082.2.) Thus, the “fair argument test” asks the lead agency to determine whether there is substantial evidence to support a fair argument that the project may have a significant environmental impact. (See Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 675-76.) Public controversy is not substantial evidence. (Pub. Resources Code, § 21082.2; 14 Cal. Code Regs., § 15064(f)(4).) Moreover, substantial evidence is not “[a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment.” (14 Cal. Code Regs., § 15384(a).) In weighing such evidence, the inquiry is not whether any argument can be made “but rather whether such an argument can fairly be made.” (Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1003 (emphasis in original).) “The lead agency has discretion to determine whether evidence offered by the citizens claiming a fair argument exists meets CEQA’s definition of ‘substantial evidence.’” (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.)The Decision found that “[o]n the basis of the whole record before it (including the Initial Study and all comments received) … there is no substantial evidence that the project will have a significant effect on the environment.” (D.20-09-034, p. 15, FOF #7.) As discussed in more detail in the sections below, the Commission had evaluated “comments submitted on Draft IS/MND and the written responses to those comments, as well as the parties’ opening and reply briefs” in determining whether the evidence presented throughout this matter had raised a fair argument. (D.20-09-034, p. 9.) This determination was within the discretion of the Commission and the rehearing applications’ attempts at re-litigation do not establish any fair argument. The Commission applied the correct test and reviewed the record evidence properly in its determination that there was no substantial evidence supporting a fair argument that the Project may have significant environmental impacts. Legal error has not been shown. No Substantial Evidence Supporting a Fair Argument of a Potentially Significant Aesthetic Effect Has Been ShownParties argue that the Commission erred in its analysis concluding that “aesthetic impacts would be less than significant.” (See Final IS/MND, p. 2-6.) As discussed below, the parties’ critiques on observation point selection and methodology for determining whether there would be a significant aesthetic impact are meritless. Moreover, the parties fail to support their claims with substantial evidence that would support a fair argument of a significant aesthetic effect. The Contentions Against the Commission’s Selection of Observation Points Do Not Support a Fair Argument of a Significant Aesthetic EffectSan Marcos opines that “the key observation points selected for visual analysis in the MND were not representative of the scenic views located throughout the Project area[.]” (San Marcos App. Rhrg., p. 20.) Similarly, Pack suggests that there was an “illogical selection of inappropriate scenic vistas for analysis.” (Pack App. Rhrg., p. 17.) Observation points assist the Commission in assessing the potential aesthetic impacts of a project. According to the Final IS/MND: “[i]n order to document the visual change that would occur, five visual simulations were presented in the Draft IS/MND showing before and after images depicting the Project from key observation points (KOPs) along Segments 1 and 2.” (Final IS/MND, p. 2-2.) The document clarifies that “[n]o visual simulations were prepared for Segment 3, as the Project would use existing towers and infrastructure and would not change the physical appearance of these components in this segment. (Final IS/MND, p. 2-2, n.1.) Moreover, “[t]he KOP locations were selected to represent views seen by the largest number of viewers, such as West San Marcos Boulevard and the San Elijo Hills and Lake San Marcos neighborhoods.” (Final IS/MND, p. 2-2.) In response to comments, five KOPs were added:? KOP Y: a “gateway” view entering the City of San Marcos on Palomar Airport Road,? VP 5: a view from the play field at Simmons Family Park,KOP XX: a view from the picnic grounds at Simmons Family Park,? KOP W: a view from a residential area on Coast Avenue in San Marcos, and? KOP Z: a view from a residential area on South Rancho Santa Fe Road in San Marcos.(Final IS/MND, p. 2-3.) Moreover, the Final IS/MND notes that “two views from Simmons Family Park have been included in the revised Aesthetics analysis, one with a simulation of the Project overlain on the view.” (Final IS/MND, p. 2-3.) Despite comments about private views, such views were not assessed as they are not protected under CEQA. (See Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal. App. 4th 477, 492.)Pack argues that “CEQA places the burden of environmental investigation on government rather than the public. If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.” (Pack App. Rhrg., p. 20, citing Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.)In the sentence immediately following the quoted material from Sundstrom, the following illustration is provided: “The issue of sludge disposal offers a clear illustration of this principle. The record merely discloses that the plant is designed to hold but 3,900 gallons of sludge, and that no disposal site is available in the county. In the absence of any further information, the record thus permits the reasonable inference that sludge disposal presents a material environmental impact.” (Sundstrom at 311.)Unlike Sundstrom, here we are not contending with a record containing “limited facts.” The numerous selected vistas were examined in detail. The Applicants’ contentions fail to show substantial evidence of a fair argument of a significant environmental impact. San Marcos and Pack both take issue with the Commission’s observation points, with San Marcos, for example, questioning as to whether certain views are to the southwest or the west. (San Marcos App. Rhrg., p. 20; see Final IS/MND, pp. 3-15, 3-16, 3-17.) Yet disagreeing with the selected observation points is not enough. Lead agencies have discretion to select the appropriate methodology for analyzing a particular impact. (See Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1049.) Neither party presents substantial evidence of a fair argument of a significant aesthetic effect. Given that the Commission’s selection of observations points is supported by substantial evidence as well as the lack of any evidence to support a fair argument of significant aesthetic impacts, the parties’ contentions about observation points are meritless.The Contentions Against the Commission’s Methodology for Determining Aesthetic Impacts Do Not Support a Fair Argument of a Significant Aesthetic Effect In the Final IS/MND, the Commission used the Federal Highway Administration (FHA) methodology for assessing aesthetic impacts. As explained in the Final IS/MND:An adverse aesthetic impact may occur when: (1) an action (i.e., a “project”) perceptibly changes the existing physical features of the landscape that are characteristic of the region or locale; (2) an action introduces new features to the physical landscape that are perceptibly uncharacteristic of the region or locale, or become visually dominant in the viewshed; or (3) an action blocks or totally obscures aesthetic features of the landscape. The degree of visual impact depends on the noticeability of the adverse change. The noticeability of a visual impact is a function of a project’s features, context, and viewing conditions (angle of view, distance, and primary viewing directions). The key factors in determining the degree of visual change are visual contrast, project dominance, and visual screening.(Final IS/MND, p. 3-24.)The Final IS/MND reviewed each segment of the Project for aesthetic impacts. “In Segment 1, existing poles would be replaced and an additional electrical circuit would be added to the circuit on the existing poles.” (Final IS/MND, p. 3-26.) Despite such changes, the Commission determined that “it would not change the visual character of the area, introduce a new uncharacteristic feature, or block or obscure an existing unobstructed view.” (Final IS/MND, p. 2-5.) In its analysis of Segment 2, the Final IS/MND explained that: “[w]hile Segment 2 would involve the construction of a new power line, it would be co-located with an existing larger power line within the SDG&E ROW [right of way] (i.e., TL 13811/13825). Segment 2 would be designed such that the new power poles supporting the TL 6975 power lines would be spaced at the same interval as and co-located with the existing TL 13811/13825 poles, thereby limiting visual contrast.” (Final IS/MND, pp. 3-26, 3-27.) Finally, “the re-energization of Segment 3 would utilize existing poles and towers, which would not change the physical appearance of these facilities.” (Final IS/MND, p. 3-26.) Critically, “the Project does not propose to construct and operate electrical infrastructure along any segment where some form of infrastructure does not currently exist.” (Final IS/MND, p. 3-26.) This aspect of the Project is supported by analysis of substantial evidence, including before and after photo simulations of areas where changes may occur. (See Final IS/MND, p. 3-28 to 3-43.) The significance of any aesthetic impacts, in consideration of overall visual sensitivity and overall visual changes, were assessed using the “Guidelines for Determining Adverse Visual Impact Significance.” (Final IS/MND, p. 3-25.) The Commission’s extensive analysis plainly demonstrates that the contention of San Marcos that “the MND fails to show that a thorough visual analysis was conducted or, for that matter, that any visual analysis was conducted” is unsupported by the record. (See San Marcos App. Rhrg., p. 17.)Pack critiques the Commission’s analysis of the Simmons Family Park. (Pack App. Rhrg., p. 23-24.) In particular, Pack contends that the Commission erred in its determination of a “moderate” visual sensitivity, arguing that “Simmons Family Park should be rated as having a high visual sensitivity.” (Pack App. Rhrg., p. 24.) Pack complains that the Brookside Court location also was determined to have a “moderate” visual sensitivity, despite the two locations having “profound differences.” (Pack App. Rhrg., p. 24.) Simply being different types of locations (a park versus a street) does not necessarily mean that they will fall into different visual sensitivity categories. More than one element is analyzed in determining visual sensitivity (i.e.: visual quality, viewer types and volumes of use, and viewer exposure). Pack fails to support its assertion that the Commission’s analysis in arriving at the “moderate” category was wrong. Furthermore, given the “low to moderate” visual contrast, even assuming that Pack was correct on this point, the Project would still have a less than significant visual impact. (Final IS/MND, p. 3-25.) In sum, the contentions against the Commission’s methodology for determining aesthetic impacts are meritless. The Contentions Regarding Public Observations Do Not Provide Substantial Evidence Supporting a Fair Argument of a Significant Aesthetic Effect Pack argues that: “[i]nstead of acknowledging the fact that Dr. Pack and other commenters provided valuable information in regards to the need to evaluate the visual impacts on Simmons Family Park, Dr. Pack’s efforts are attacked in the FIS/MND.” (Pack App. Rhrg., p. 21.) Likewise, San Marcos states that “[t]he Decision ignores the observations of the numerous residents in the area of the Project who commented on the negative visual impacts of the Project.” (San Marcos App. Rhrg., p. 21.) Public observations may constitute substantial evidence supporting a fair argument of significant aesthetic effects. (See, e.g., Pocket Protectors, supra, 124 Cal.App.4th at 928.) The CEQA lead agency may consider the credibility of testimony and “has discretion to determine whether evidence offered by the citizens claiming a fair argument exists meets CEQA’s definition of ‘substantial evidence.’” (Id.) However, mere speculation or “unsubstantiated opinions, concerns, and suspicions” are not substantial evidence and cannot establish a “fair argument” that a significant impact may occur. (Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 756; Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337, 1352.) Further, courts acknowledge that “we must give the lead agency the benefit of the doubt on any legitimate, disputed issues of credibility.” (Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, 1151, quoting Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, 331.)The Commission explicitly determined that:In making this finding, the CPUC has considered the opinions of commenters regarding the Project’s potential impacts, including aesthetic impacts, and the many photographs submitted that depict past and existing conditions along with commenters’ opinions about how the Project may alter those views. Most such comments addressed private views from residences. As explained in Chapter 2 of this Final IS/MND, private views are not considered under CEQA. Several commenters offered unsubstantiated opinions that views from public vantage points such as Palomar Airport Road and Simmons Family Park would be significantly altered. However, in responses to these comments, the CPUC evaluated additional visual simulations from these vantage points and found that the Project’s effects on these views would be less than significant. Additionally, as explained in greater detail in Chapter 2, under Responses to Comments I3-5 and I3-25 in Section 2.4.2, the CPUC finds that two photo simulations purporting to address views of the Project from Simmons Family Park and White Sands Drive lack sufficient credibility to be considered as substantial evidence as no vantage point, field of view, or methodology for creating the simulations has been specified, and in the case of the simulation depicting Simmons Family Park, the photo is a distorted panoramic image depicting an unnaturally wide field of view. Similarly, three additional photo simulations shown in Appendix B.2 on pages B.2-24, B.2-26, and B.2-27 lack sufficient credibility to be considered as substantial evidence as no vantage point, field of view, or methodology for creating the simulations has been specified. (Final IS/MND, p. 1-4.)It is reasonable for the Commission to question the credibility of such pictures in determining whether they constitute substantial evidence. Here, the Commission exercised its discretion to determine that the proffered evidence did not meet CEQA’s definition of substantial evidence to support a fair argument. Moreover, as CEQA does not protect private views, a fair argument does not arise from such evidence either. (See Mira Mar Mobile Community v. City of Oceanside, supra, 119 Cal. App. 4th at 492.) Ultimately, the parties have not cited “substantial evidence” in the record supporting a fair argument that the Project may have a significant aesthetic effect.No Substantial Evidence Supporting a Fair Argument of Potentially Significant Cumulative Effects Has Been ShownSan Marcos states: “[t]he MND does not properly analyze the cumulative impacts of SDG&E’s numerous power lines (both existing and proposed).” (San Marcos App. Rhrg., p. 17.) Pack concurs in that view. (Pack App. Rhrg., p. 25.) Significant cumulative impacts are alleged both as to aesthetics and fire risk. The parties’ contentions on this point are meritless.In CEQA analysis, cumulative impacts are reviewed. An EIR should be prepared when “[t]he project has possible environmental effects that are individually limited but cumulatively considerable. ‘Cumulatively considerable’ means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (14 Cal. Code Regs., § 15065(a)(3).) In accordance with the CEQA, the Commission reviewed a comprehensive list of past, present and reasonably foreseeable future projects that could result in related or cumulative impacts. (Final IS/MND, pp. 3-67 to 3-74 (Table 3.21-1).) Its finding of no significant cumulative impacts is based on that review. San Marcos points to the 2009 Shadowridge Transmission Enhancement Project in Segment 2 in support of its contentions regarding cumulative impacts. In particular, San Marcos asserts that the prior project: “proposed to replace approximately 60 wood poles and one steel lattice tower with new poles that were an average of 25 feet higher (averaging approximately 84 feet tall) than the existing double-pole wood H-frame structures and single wood poles being replaced (averaging approximately 59 feet tall).” (San Marcos App. Rhrg., p. 17, citing Res. E-4245.) Resolution E-4245 had found that “the incremental nature of the proposed power lines in the established right-of way would not result in a potentially significant aesthetic impact as defined by CEQA guidelines.” (Res. E-4245, p. 9, FOF #10.)The Commission acknowledged that “Segment 2 would have the potential to contribute additional poles, towers, and conductors to the viewshed that would combine with existing power line infrastructure.” (Final IS/MND, p. 3-65.) However, the Commission nevertheless determined:This cumulative analysis considers the TL 6975 project together with other closely related past, present, and reasonably foreseeable probable future projects. Of cumulative projects identified in Table 3.21-1, the existing TL 13811/13825 138 kV transmission line noted above would fit this definition. As noted in the aesthetics impact analysis found in Section 3.1.4, while the visual sensitivity along Segment 2 would be moderate, the Project – with TL 13811/13825 as part of the baseline condition – would create a low-to-moderate or moderate visual change to the existing visual environment. For this cumulative impact evaluation, it would be a very similar scenario, as TL 13811/13825 is the only closely related project to be considered with the Project. Both projects would be co-located in a long-established power utility right-of-way. The presence of utility infrastructure would not be an uncharacteristic visual component in viewscapes which include the right-of-way. Both lines would have consistent line, form, color, and texture. Therefore, when considered together, the overall visual contrast and change attributable to past, present, and future projects in the right-of-way would be low to moderate. While the changes attributable to the Project would be visually apparent (i.e., new, taller steel poles), particularly in Segments 1 and 2, the visual characteristics of the incremental effect of the new structures to visual character or quality in the Project area would not be significant viewed in connection with the impacts of other projects.(Final IS/MND, p. 3-65.)Contrary to San Marcos’ contentions, a proper analysis of potential cumulative impacts was conducted. And to the extent that San Marcos simply disagreed with the prior project, authorized by Resolution E-4245 in 2010, such concerns are not timely here. Moreover, Pack’s complaint that the Commission failed to adequately consider Dr. Pack’s photographs does not overcome the Commission’s credibility determinations on such evidence. (See Pocket Protectors, supra, 124 Cal.App.4th at 928.) Both rehearing applications argue that the Commission adopted a “de minimis” approach which was disapproved in Communities for a Better Env’t v California Resources Agency (2002) 103 Cal.App.4th 98 (overruled in part on other grounds in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1109, n.3). (See San Marcos App. Rhrg., p. 18; Pack App. Rhrg., p. 26.) These claims are meritless. These unfounded complaints misinterpret the analysis from Communities for a Better Env’t, which clarified that:This does not mean, however, that any additional effect in a nonattainment area for that effect necessarily creates a significant cumulative impact; the “one [additional] molecule rule” is not the law.(Communities for a Better Env’t, supra, 103 Cal.App.4th at 120.)In any event, in its analysis of the Project including the prior work in a longstanding right of way, the Commission complied with the mandates from Public Resources Code § 21083(b)(2) and CEQA Guidelines §§ 15065(a)(3) and 15064(h)(1), which direct the Commission to consider whether the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects. The parties have not raised substantial evidence of a fair argument of a potentially significant/cumulatively considerable aesthetic impact.Regarding Wildfire Risk, No Substantial Evidence Supporting a Fair Argument of Potentially Significant Effects Has Been ShownSan Marcos asserts that “[p]roject opponents have raised a fair argument that the Project will cause a significant impact to the environment with respect to wildfire risk and that the approved measures do not adequately mitigate those impacts.” (San Marcos App. Rhrg., p. 13.) Both rehearing applications argue that the project adds a new ignition source, which thereby increases fire risk, and that an undergrounding alternative should have been considered. (San Marcos App. Rhrg., pp. 14-15; Pack App. Rhrg., pp. 11, 13-15.) San Marcos also claims that the project will impede evacuation routes. (San Marcos App. Rhrg., p. 16.) These arguments lack merit. The Final IS/MND acknowledged that power lines are potential sources of ignition. (Final IS/MND, p. 2-10.) Investor-owned utilities such as SDG&E are obliged by law to maintain the safety of their facilities including powerlines. (Pub. Util. Code, § 451; General Order 95.) Utilities which fail to prudently maintain and operate their system with respect to fire safety may be subject to substantial disallowances of costs associated with any associated fires. (See D.17-11-033, rhrg. denied D.18-07-025, U.S. Sup. Ct. cert. denied (October 7, 2019).)In this matter, the Commission determined that the “risk of exposing surrounding communities to exacerbated risk of the uncontrolled spread of a wildfire and associated impacts would be less than significant.” (Final IS/MND, p. 2-10.) In making this determination the Commission relied on statewide or region-wide fire prevention and suppression requirements. The Final IS/MND further determined that “substantial evidence in the form of regular reports to the CPUC supports a conclusion that SDG&E is in compliance with these requirements.” (Final IS/MND, p. 2-10.) Furthermore, significant consequences would lie for SDG&E should it fail to maintain fire safety. The Commission’s determination was correct as “a condition requiring compliance with regulations is a common and reasonable mitigation measure and may be proper where it is reasonable to expect compliance.” (Oakland Heritage Alliance v City of Oakland (2011) 195 Cal.App.4th 884, 906.)Contrary to the parties’ claims, energizing any new power line, as a de facto conceivable ignition source, does not raise a fair argument of a potentially significant environmental impact. (See Communities for a Better Env’t, supra, 103 Cal.App.4th at 120.) The Commission properly assessed the risk, acknowledging the potential minor increase in risk for fires mitigated by statewide or region-wide fire prevention and suppression requirements. The Commission thereby considered “whether the wildfire risk in the fire vicinity is uncharacteristic in some way that would render the Project’s impact significant, even considering the implementation of all plans and policies for wildfire prevention and suppression[.]” (Final IS/MND, p. 2-7.) The parties fail to identify substantial evidence supporting the existence of a fair argument on this point. Also, the parties’ argument that the Commission must review alternatives, such as undergrounding, does not establish legal error. A lead agency is only required to consider alternatives to a proposed project when an EIR is prepared, not an MND. (Final IS/MND, p. 2-14.) Nevertheless, to identify whether SDG&E could feasibly put forth alternatives or design improvements that would address concerns communicated in the comments on the Draft IS/MND, CPUC issued Data Requests to SDG&E seeking additional information. SDG&E indicated that it is not feasible to locate the TL6975 conductor on the existing TL13811/13825 poles in the Segment 2 right of way (including as an underbuilt line); that the underground option described in the PEA was technically feasible but not proposed because the cost would be potentially two or three times greater than that of the Project; and identified additional aesthetic considerations that were incorporated into the proposed pole locations, heights, and finishes. (Final IS/MND, p. 2-14.)Finally, the contentions that the Project may inhibit evacuation or emergency response during construction, or as a result of downed power lines, do not establish legal error. In addressing these concerns, the Commission adopted APM TRA-1, which includes implementation of traffic control measures that would be used during construction to ensure safety and minimize congestion, and APM TRA-2, which requires SDG&E to coordinate with local agencies in the event of an emergency to allow access to proceed unimpeded. As to downed power lines, “[d]uring Project operation, in accordance with Electric Standard Practice 113.1, described in Section 3.20.2, the Project would retain a Fire Coordinator who would serve as a conduit or liaison to emergency service agencies. Coordination with local emergency responders during construction and operation would ensure that the Project would not conflict with emergency response or evacuation in this community.” (Final IS/MND, Appendix A (Draft IS/MND at 3.20-10).) With such mitigation in place, the parties fail to point to substantial evidence supporting a fair argument of potentially significant impacts on evacuation and emergency response. In sum, the parties fail to identify substantial evidence supporting a fair argument of potentially significant wildfire risk. Regarding Noise Impacts, No Substantial Evidence Supporting a Fair Argument of Potentially Significant Effects Has Been ShownSan Marcos asserts that the Project will have significant noise impacts that will not be reduced to less than significant levels by the mitigation measures. (San Marcos App. Rhrg., p. 22.) San Marcos takes issue with adopted MM NOI-1 which the Final IS/MND determined “would reduce nighttime construction noise impacts on sensitive receptors, including those along West San Marcos Boulevard, to a less-than-significant level by either reducing noise to below the significance threshold or temporarily relocating residents away from noise exceedances.” (Final IS/MND, p. 2-65.) The problems associated with temporarily relocating residents are emphasized by San Marcos. (San Marcos App. Rhrg., p. 23.) San Marcos also asserts that the analysis of noise impacts is being improperly deferred. (San Marcos App. Rhrg., p. 23.) These arguments are meritless. While San Marcos emphasizes the potential for problems, it does not explain how or why the mitigation measures would not work. As an example, regarding impact tools MM NOI-1 states: Impact tools (e.g., jack hammers, pavement breakers, and rock drills) shall be hydraulically or electrically powered where feasible to avoid noise associated with compressed air exhaust from pneumatically powered tools. Where use of pneumatic tools is unavoidable, an exhaust muffler on the compressed air exhaust shall be used; this muffler can lower noise levels from the exhaust by up to about 10 dB. External jackets on the tools themselves shall be used where feasible; this could achieve a reduction of 5 dB. Quieter procedures, such as use of drills rather than impact tools, shall be used whenever feasible.(D.20-09-034, Attachment A, p. 4-20.)This is just one measure SDG&E agreed to in order to mitigate the noise impacts, which includes noise shields and barriers, notification and correction, and temporary relocation as a last resort. (D.20-09-034, Attachment A, p. 4-20.) Absent citation to substantial evidence in the record showing that significant adverse impacts will remain after mitigation, there is no basis to assume that the conditions adopted by the agency in a mitigated negative declaration will be ineffective. (See Hollywoodians Encouraging Rental Opportunities v. City of L. A. (2019) 37 Cal.App.5th 768, 777-78.) Moreover, the Commission is not deferring its analysis on this point; the Final IS/MND fully analyzed potential noise impacts and identified appropriate mitigation measures to reduce them to less than significant. (Final IS/MND, p. 2-65, 3-54 to 3-59, Appendix A (Draft IS/MND at 3.13-1 to 3.13-27).) The Construction Noise Reduction and Mitigation Plan, which must be submitted 14 days prior to construction, provides for the submission of the “specific details of a mitigation measure” consistent with CEQA Guideline § 15126.4(a)(1)(B). This submission is not feasible until after permitting, and the parties have failed to show that it does not comport with CEQA Guideline § 15126.4(a)(1)(B). Mitigation Measure NOI-1 also includes a specific performance standard, which the Commission commits to achieving, i.e., a construction noise limit of 75 dBA as an hourly Leq at nearby sensitive receptor locations. No substantial evidence supporting a fair argument of potentially significant noise impacts has been shown. Rights of Way Were Appropriately Analyzed in the Final IS/MNDSan Marcos claims that it “has not been provided with sufficient description or information concerning, or adequate analysis of, the specific location and scope of the proposed right of way acquisition and expansion, the impacts of the proposed Project on the use and value of properties owned by the City and its citizens, and/or on the visual and aesthetic benefits currently enjoyed by them.” (San Marcos App. Rhrg., p. 25.) Asserting the potential for “improper segmentation”, San Marcos cautions that “if relied on in an eminent domain proceeding, the lack of right of way specificity will undermine the due process rights of property owners.” (San Marcos App. Rhrg., p. 27.) This argument is meritless.As the Commission has explained:If the Project is approved, final construction drawings would be completed and require local ministerial permits be obtained prior to construction. All existing and proposed SDG&E ROW, as well as existing and proposed access roads, are shown in Draft IS/MND Appendix A as needed to support CPUC’s CEQA analysis. No construction drawings of the type requested in the comment are available to CPUC at this time to share with the City of San Marcos. Additionally, the City’s issuance of ministerial grading permits is outside the scope of CPUC’s CEQA review.(Final IS/MND at 2-68.) Moreover, “[t]he Draft IS/MND identifies what additional ROW would be acquired on page 2-23 on mapbook Figures A-2 through A-6 in Draft IS/MND Appendix A. CEQA-relevant impacts of this expanded ROW are evaluated throughout the Draft IS/MND technical sections.” (Final IS/MND 2-72.) In other words, there is substantial evidence of the Commission’s analysis of ROW issues. Ultimately, while San Marcos may perceive the Final IS/MND as inadequate, its allegations about future necessary regulatory actions are speculative. San Marcos does not offer any citation to record evidence supporting a fair argument of potentially significant environmental impacts. Thus, San Marcos does not meet the standard for demonstrating legal error in this case. (See CEQA Guidelines, § 15384(a), Pub. Resources Code, § 21082.2.) Indeed, alleging inadequacy in the Final IS/MND without identifying the environmental impacts does not “alert the Commission to a legal error, so that the Commission may correct it expeditiously,” which is the purpose of a rehearing application. (See Rule 16.1(c).) Beyond that, San Marcos’ speculation regarding property values is outside the scope of CEQA. A potential change in property value is considered an economic concern unless it would result in a physical change on the environment. No evidence has been presented that potential changes in property values would result in physical changes on the environment. Courts have indicated that the potential for a proposed project to adversely affect property values is not a CEQA concern. (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal. App. 4th 885, 903, citing Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1205; CEQA Guidelines, § 15131(a).) Therefore, CEQA does not require analysis of this issue.(Final IS/MND, pp. 2-15 to 2-16.)Legal error has not been shown as to ROW issues.The Final IS/MND Does Not Require RecirculationPack erroneously asserts that the Final IS/MND required recirculation as an EIR. (Pack App. Rhrg., p. 26.) This proposition rests on the false assumption the Final IS/MND had not been done correctly. (Pack App. Rhrg., p. 26.) As shown here, the Final IS/MND was done properly, and neither San Marcos nor Pack establish legal error on this point. The Commission determined that recirculation was not required in this case. (D.20-09-034, p. 8.) Recirculation is required if the negative declaration is “substantially revised” after the public notice of the first circulation period has been given. (14 Cal. Code Regs., § 15073.5(a).)A “substantial revision” of the negative declaration means:(1) A new, avoidable significant effect is identified and mitigation measures or project revisions must be added in order to reduce the effect to insignificance, or(2) The lead agency determines that the proposed mitigation measures or project revisions will not reduce potential effects to less than significance and new measures or revisions must be required.(14 Cal. Code Regs., § 15073.5(b).)Recirculation is not required when “[n]ew information is added to the negative declaration which merely clarifies, amplifies, or makes insignificant modifications to the negative declaration.” (14 Cal. Code Regs., § 15073.5(c).)Here, the record does not include evidence of a new, avoidable significant aesthetic impact in the Final IS/MND. The additional analysis conducted clarified, amplified or made insignificant modifications. (Final IS/MND, p. 3-4.) While SDG&E’s 2019 Wildfire Mitigation Plan (WMP), which was adopted after the Draft IS/MND was circulated (on May 30, 2019), was referenced in the Final IS/MND, this does not establish the need to recirculate the document. The WMP is on a separate track from this proceeding, pursuant to SB 901, and is not specific to this Project. The parties fail to demonstrate a need for recirculation in this matter. CONCLUSIONRehearing of D.20-09-034 is denied because no legal error has been demonstrated. The motion requesting a stay is also denied. THEREFORE, IT IS ORDERED that:1.The motion for a stay is denied.2. Rehearing of D.20-09-034 is denied.3. The proceeding is closed.This order is effective today.Dated February 11, 2021, at San Francisco, California.MARYBEL BATJER PresidentMARTHA GUZMAN ACEVESCLIFFORD RECHTSCHAFFENGENEVIEVE SHIROMA Commissioners ................
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